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August 13, 2013

Probationer has the burden of proving his or her termination resulted from his or her engaging in a protected union activity

Probationer has the burden of proving his or her termination resulted from his or her engaging in a protected union activity
34 AD3d 484

It is well settled that as a probationary employee, an individual could be terminated for any reason, as long as the termination was not made in bad faith, was not for a constitutionally impermissible reason, or was not in violation of statutory or decisional law.

The petitioner in this appeal was dismissed from his position with a New York City department before completing his probationary period. He challenged his termination, contending he was dismissed “in retaliation for his filing of a union grievance.” If true, this would constitute an impermissible reason for terminating an individual during his or her probationary period.

However, the individual has the burden of proving (a) that he or she was engaged in protected union activity, (b) that the appointing authority had knowledge of the activity, and (c) that he or she would not have been discharged from employment but for the activity.

The Supreme Court determined that the petitioner in this action established a prima facie case of improper motivation, thereby shifting “the burden of persuasion” to the appointing authority to establish that its actions were motivated by a legitimate business reason. Supreme Court ultimately found that the appointing authority failed to meet this burden.

The Appellate Division agreed with the tests applied by the Supreme Court in making its ruling. It affirmed the Supreme Court’s finding that the appointing authority had failed to meet its “burden of persuasion” and ruled that Supreme Court properly annulled the appointing authority's decision to terminate the petitioner.

In addition, the Appellate Division affirmed Supreme Court’s order directing the reinstatement of the petitioner to his former  position with the agency, with full back pay and benefits.

The decision is posted on the Internet at: 


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